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Making A Will? Follow These Steps To Avoid Your Wishes Being Challenged In Court

A Will is a legal document that ensures assets are distributed fairly among the family members according to the testator’s wishes after the person dies.

June 20, 2024
June 20, 2024
Making a will: Remember these key points to avoid it being challenged in a court of Law

Making a will: Remember these key points to avoid it being challenged in a court of Law

By leaving behind a Will, you can save a lot of friction and dissonance in the family over your estate. It will only be a rational step if you decide to make one pre or post-retirement. Given the uncertainties of life, creating a Will while you are still in the pink of health will ensure your wealth is fairly divided among the family members without discrimination.

Section 2(h) of the Indian Succession Act of 1925 states a Will is “The legal declaration of the intention of a testator regarding his property which he desires to be carried into effect after his death.” While leaving behind a will is crucial, it’s even more vital to follow the proper steps to ensure it will not be challenged in court later after the testator’s death.

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Why You Should Register Your Will

The testator, or the person making the Will, should also consider registering the document for legal reasons. This crucial step can help dispel any doubt or legal challenge over whether it was made with a sound mind and not under duress. Even if there is a dispute, the legal process will move faster with a registered Will than with an unregistered one. Moreover, a registered Will document will be in the registrar’s records, and legal heir/heirs can access it whenever they want.

Yet, a registered Will alone doesn’t guarantee full protection against a challenge in court. It can be contested on various grounds. Here are some points to ponder while creating a Will to improve the chances of success of what the testator had envisioned.

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When Can A Will Be Challenged In Court?

Here are a few reasons when a Will could be challenged:

Made Under Coercion:

A Will can be challenged in court if made under duress. The court could consider such fears if any credible reasons or facts point to suspicion. If such doubts are proven, the document will be considered invalid. However, the responsibility to prove that the Will was made coercively lies with the person challenging it.

Undue Influence:

The document will be invalid in the eyes of the law if undue influence was exercised on the person making the Will. Such a document can be challenged in court if there are sufficient grounds to believe otherwise. Hence, the testator must take appropriate steps to ensure it survives the scrutiny.

Suspicious Nature of the Will:

If a question is raised about the suspicious nature of the Will, it can become invalid. The suspicion can arise from incomplete disclosure of assets and liabilities, broken or unclear handwriting in the Will, differences in signatures or absence of it on any of the pages of the Will, or any other issues that raise doubt can be challenged in court.

Absence of Due Diligence:

In addition to these factors, all due diligence should be taken care of while writing a Will. For instance, it should be duly signed and stamped. Any important information missing, like the place where it was written, execution details, etc., can raise doubts.Advocate Udit Gupta says: “If a Will does not comply with mandatory requirements provided under the law, e.g., two witnesses should sign the Will in the presence of the testator, and they should have also seen the testator sign. When making of the Will is under suspicious circumstances, it can be challenged.”

Also Read: ITR Filing: Things Senior Citizens Should Know Before Submitting Income Tax Returns

Additionally, a Will written in an inebriated state of mind will be considered invalid.

A registered Will adds authenticity but it can still be challenged in court. Gupta says, “A Will can be challenged even if registered. Only the grounds of challenge can be less as compared to the unregistered Will.” So, while writing a Will, ensure you avoid these loopholes.

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